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I'm working on a book of poetry, and I want to use John Collier's (1892) painting of Lilith as the cover. I won't be selling the book though; giving it away for free. Can I legally use the painting as the cover?

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  • @DaleHartleyEmery Was wondering why you deleted your answer, it seemed like a valuable perspective --did it turn out to not match the actual legal standard? Dec 21 '15 at 17:56
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    That's right Chris. I looked up the painting, and the first photograph I found (on Wikimedia) says: "The official position taken by the Wikimedia Foundation is that 'faithful reproductions of two-dimensional public domain works of art are public domain.'" See the Licensing section here: "commons.wikimedia.org/wiki/… I quickly realized that I don't know the legal standard. Dec 21 '15 at 18:50
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    Morgan, given that you will be using a photograph (not Collier's actual paiting), find out what copyright law says about photographs of public domain works of art. Also note that it makes no difference whether you sell your book or give it away. Copyright law is about copying and distributing, regardless of whether you make money. Dec 21 '15 at 18:52
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Under U.S. copyright law, copyright on a painting is good for life of the painter plus 70 years. Works created when shorter copyrights were in effect get the shorter term under some circumstances, but we needn't go into the details. John Collier died in 1934, 1934 + 70 = 2004, his copyright has expired in any case.

So the painting is in the public domain. You can freely take a picture of it and use it.

Well, if the painting is hanging in a museum, and the museum has a policy that visitors are not allowed to take pictures, then if you tried to take a picture without their permission, you could be accused of trespassing and violating the implied contract that you agreed to by entering the museum. I'm not a lawyer, but I think they could prevent you from using the picture.

If someone else has taken a picture of the painting -- the museum or whomever -- they could arguably claim copyright to the photograph. Note that claim would be distinct from any copyright to the painting itself, and so the "clock" on the copyright would start when the photograph was published, not when the painting was made.

However, according to this article -- http://www.huffingtonpost.com/bernard-starr/museum-paintings-copyright_b_1867076.html -- a U.S. court has ruled that photographs that are simply "slavish copies" of a painting do not enjoy copyright protection separate from the painting. By "slavish copy" they mean a photograph intended to simply show the painting. If the photograph included people standing around the painting or other scenes or objects visible, then the photographer could claim that these additional elements are original, and thus protected by copyright. (Just as, if you printed a quote from Shakespeare, you can't claim that you now own a copyright to that quote. But if you wrote an article where you quoted Shakespeare with commentary about that quote that you wrote yourself, you can claim copyright to the article.)

Of course, a given photographer might not be familiar with that court decision, or might try to argue some technical point, so the existence of such a court decision means that if sued, you would probably win, but it doesn't mean that someone couldn't sue you and force you to appear in court. So the truly safe route is to either take a photo yourself or get a photo taken by someone who agrees that his photo his public domain.

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    Not quite correct, the life+70 term applies only to works published after 1977. However, any work published in 1892 is in the public domain in the US, and in every other country that I know the law of (unless there is a special exception like the one made for Peter pan in the UK. In The US under the Bridgeman vs Corel rule, a "slavish likeness" is not original and gets no copyright. Quite a few other counties follow this rule. This is sufficiently well established in the US that a suit over such a photo would likely be dismissed almost at once, long before trial. Mar 27 '19 at 5:35
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I can't answer specifically about this painting held in the Atkinson Art Gallery, but so that this question might be useful to other people I offer the following observations.

If you can go and photograph it yourself, following the rules of the institution in which it is held, you can use the picture, if it is out of copyright. However, many museums and art galleries either prohibit the use of your pictures, insist that you pay a fee to use any image of the artefact, or insist on you paying a fee for the use of their image. This fee varies dramatically. One gallery I know of demanded £5 for use of a picture in an academic book. Others demand hundreds of pounds.

As well, just because you can access an image of the Internet that says it is free to use, doesn't mean that it is: many people do not take account of the fact that images are owned by other people. Photo stock sites offer a way around this problem.

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  • While there is certainly skill involved in photographing a painting, I simply can't see a court of law awarding a photographer royalties on a picture that merely captures a public domain work with no creative changes. I surely can't see a jury doing it. For one thing, imagine proving that it was your picture of the painting and not someone else's.
    – Thom
    Dec 22 '15 at 12:50
  • I checked today with someone that buys images: the photographer doesn't own the rights, the owner of the work of art owns the rights. You have to use their official photograph(s) of the object if you are going to publish any photograph, and to do that you have to buy the official photograph. Having said that, some official photographs are free and just have to be acknowledged. Dec 22 '15 at 22:34
  • @S. Mitchell Yes, but then the copyright on the work of art has expired, the owner of the work of art has no rights. If you manage to access a photo that is a direct (slavish) reproduction of a 2-d work of art where the work was published before 1923, There simply is no copyright claim under US law. The museum that owns the origina can't do a thing, and thei is sufficiently established that it won't try. Mar 27 '19 at 5:39
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In the US, his painting would long ago be public domain. Don't know how that works in UK.

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Yes, you can

And it doesn't matter if you plan to sell the book or give it away.

That painting is in the public domain in the US, because it was published well before 1923. It is in the public domain in the UK and most of the EU because the author died well over 70 years ago. In fact, I don't know of any country in which the painting is still under copyright.

Now as to the photograph or scanned image. If such an image exists, and you can access it, under Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) a "slavish" reproduction of a 2-d (flat) work of art does not have the originality to be granted a copyright, and is unprotected.

The Wikipedia article says:

Bridgeman is not binding precedent on other federal or state courts, but it has nevertheless been highly influential as persuasive authority, and is widely followed by other federal courts.

Several federal courts have followed the ruling in Bridgeman. In Meshwerks v. Toyota, 528 F.3d 1258 (10th Cir. 2008),[5] the Court of Appeals for the Tenth Circuit favorably cited Bridgeman v. Corel, extending the reasoning in Bridgeman to cover 3D wireframe meshes of existing 3D objects. The appeals court wrote "[T]he law is becoming increasingly clear: one possesses no copyright interest in reproductions ... when these reproductions do nothing more than accurately convey the underlying image".

The decisions tht follow Bridgeman also comply with Feist Publications v. Rural Telephone Service (1991) in specifically rejecting difficulty of labor or expense as a consideration in copyrightability. (This used to be called the "sweat of the brow" theory of copyright.)

The Wikipedia article goes on to say that:

As a US court case, Bridgeman Art Library v. Corel Corp. is not binding upon UK courts. However, because it follows dicta in Interlego, and cites Justice Laddie, it serves to raise doubt in UK law as to the originality of photographs that exactly replicate other works of art.

...

In November 2015, the Intellectual Property Office of the United Kingdom issued an official guide for individuals and businesses titled "Copyright Notice: digital images, photographs and the internet" that offers a judgment similar to that of Bridgeman v. Corel ...

The owners of such out-of-copyright often prevent, or try to prevent, photos being taken, and will provide access to images only for a fee. But if a person can once gain access to such an image, copyright law cannot be used to restrict its use.

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